The Duty To Serve in Trump's America?

Some months ago, an attorney at the Department of Justice asked Ben about the ethical course of action for career lawyers who view President Trump as a dangerous threat:

Do we have an ethical and civic responsibility to stay here to do our small part to try to keep things in check (but resigning if forced to do something illegal or unethical)? Or is it worse to lend him credibility by staying, even if that means we might be replaced by someone less likely to resist improper direction from Trump's appointees?

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At the time I generally agreed with Ben’s advice: that career lawyers should stay, while political appointees should not lend their names to legitimizing attacks on the rule of law.

Last night, Donald Trump became the President-elect of the United States. And in the cold light of November 9, I feel quite differently.

On the day I joined the National Security Agency, then-Deputy Director Chris Inglis stood before my anxious cohort of newbies in a small room at the National Cryptologic Museum. He talked to us about the history of the Agency, the role of signals intelligence in creating a more peaceful world, and the bonds of common purpose and service to the nation. He asked that we recognize the grave responsibility we were undertaking and that we remember that, whatever our individual roles, everything we did mattered. We then raised our right hands, repeating after Inglis, and swore our oath:

I do solemnly swear that I will support and defend the Constitution of the United States against all enemies foreign and domestic and that I will bear true faith and allegiance to the same; that I take this obligation freely without any mental reservation or purpose of evasion and that I will well and faithfully discharge the duties of the office upon which I am about to enter. So help me God.

It was, unquestionably, the proudest moment of my professional life.

Both before his election and in the hours since, journalists and friends have asked me for thoughts on NSA in Trump’s hands. Would he use it as a personal surveillance shop to spy on his enemies in the US? Would he repeal the various Executive Orders which extend protections to US citizens and foreigners around the world? Is this not a vindication of the many warnings from civil libertarians that the US intelligence community, even if it is not currently being abused, is ripe for abuse in the wrong hands?

My answers to those questions before and after the election remains largely the same. No, Trump could not use NSA to violate statute and the Constitution in the United States. Yes, he could roll back protections of Executive Orders, but it is far more complex than a pen stroke to undo the many DOD regulations and Attorney General procedures, and indeed the structure of the IC itself, which rest on the foundation of those orders. And yes, the NSA can in theory be abused, but not without the courts and Congress and many elements of the executive branch being aware of the abuse and empowered to stop it.

I want to be candid here that I felt far less certain in those answers this morning than I did yesterday. My faith in the institutional protections surrounding the intelligence community are being tested, just as those institutions themselves may soon come to be tested like never before. My beliefs, it turns out, rest on the assumption that we would only elect a sane President who adhered to constitutional norms. I am prepared for the possibility of eating crow—the day may soon come when I will admit to even the smuggest of civil libertarians that I was wrong.

But I still believe that an empowered intelligence community makes the world safer for people and ideas. Certainly, I am more suspicious of the powers of Section 702 in the hands of President Trump than in the hands of President Obama. I am now more inclined to favor limitations I might not have previously deemed or even imagined necessary. But I still know that whoever the President may be, it is a critical authority necessary to keep Americans safe.

I am also as sure today as I was yesterday that the men and women of NSA are decent, law abiding, and honorable. I wish them continued strength, courage, and judgment in the days and years ahead. And I hope that President Trump comes to recognize the gravity of his task, the many lives that now depend on his even judgment, the ways in which he will shape the world.

This morning I couldn’t help but reflect on that day when Deputy Director Inglis administered my oath of office. The character of people like Inglis both reflects the institution that elevated him and also sets the culture for the next generation. I won’t name current officials out of deference for the non-partisan nature of their work, though plenty of examples of true integrity come to mind. We need people like that issuing the NSA oath, and not craven political hacks all too happy to step into powerful roles abandoned by principled people.

This is why I think it is the duty of rational, reasonable experts to serve their country in a Trump administration, even at the political level, if asked. If he will accept it, Trump must have wise and informed counsel. Americans will be served by principled individuals in government defending our Constitution and role in the world. Those who stay home to satisfy ideals of personal integrity will not make our world safer.

The NSA Deputy Director is a career official, but the world in which a political hack occupies important and powerful national security roles risks a very different kind of intelligence community. There are two version of the US national security apparatus. One is a noble calling to secure our country and defend our future. It is a version of the intelligence community I was proud to serve and am proud to defend. To be sure, mistakes happen and occasionally require dramatic course corrections. But it is, fundamentally, about the Good Fight.

But there’s another version of these very same tools, a version involving people who wield them without treating them with necessary reverence. It is the dystopian account of national security that is occasionally offered by the more extreme of the NSA’s detractors. Here, surveillance tools are used to harass and intimidate and make citizens fearful of exercising their rights. It is petty and vindictive and used to satisfy the personal prejudices of those in power. We see it often in our nation's adversaries. The difference is not always one of law or policy. Often, it’s often one people and their intentions and honor.

There are many institutional protections against abusive surveillance. But none is as important as having principled individuals who know the difference between those two versions of the national security apparatus when they see it and would refuse to serve the latter. We need Trump’s administration to be staffed by as many of those kinds of people as possible.

To anyone contemplating serving in a Trump administration but who fears that, even with noble intentions they might lose their path, I’ll offer advice given to me when I first joined the ranks of national security lawyers. On day one draft a letter of resignation and place it in your desk drawer. Stay and do what is right for the country, steer us to better policy, prevent tragic mistakes, stand guard over powerful institutions, and blow the whistles that need to be blown. But the moment you are asked to do something—big or small—that you believe harms the country, violates your oath or our laws, or compromises personal integrity be prepared to offer your resignation.

For the great many structural, compliance, and institutional protections, there is simply no defense more important than good people who are willing to fight the good fight and only the good fight.

Susan Hennessey is the Executive Editor of Lawfare and General Counsel of the Lawfare Institute. She is a Brookings Fellow in National Security Law. Prior to joining Brookings, Ms. Hennessey was an attorney in the Office of General Counsel of the National Security Agency. She is a graduate of Harvard Law School and the University of California, Los Angeles.